Emigrant Bank v. Rosabianca

Emigrant Bank v Rosabianca (2017 NY Slip Op 08716) Emigrant Bank v Rosabianca 2017 NY Slip Op 08716 Decided on December 14, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 14, 2017 Friedman, J.P., Gische, Kapnick, Kahn, Gesmer, JJ. 4227N 850136/14 [*1] Emigrant Bank, as successor-by-merger with Emigrant Savings Bank - Manhattan, Plaintiff-Respondent, vLuigi Rosabianca, et al., Defendants, Carmelo Rosabianca, et al., Defendants-Appellants. Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellants. Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for respondent. Order, Supreme Court, New York County (Gerald Lebovits, J.), entered June 17, 2016, which denied the motion of defendants Carmelo and Vivian Rosabianca (the Rosabiancas), inter alia, to file a late answer pursuant to CPLR 3012(d), affirmed, without costs. Notwithstanding the Rosabiancas' sympathetic position, we conclude that the denial of their motion for relief under CPLR 3012(d) was warranted for the reasons that follow. I.Factual and Procedural Background Since 1974, the Rosabiancas have owned and lived at the residential property located at 2342 Benson Avenue in Brooklyn. Allegedly without their knowledge, in 2008, the Rosabiancas' son, defendant Luigi Rosabianca (Luigi),[FN1] used their home as collateral for a $1.76 million mortgage loan he obtained from Emigrant Mortgage Company (EMC) on a condominium unit located at 55 Wall Street in Manhattan. EMC subsequently assigned the collateral mortgage and related note to Emigrant Savings Bank - Manhattan (ESBM), which was later merged into plaintiff, Emigrant Bank. On April 30, 2008, shortly before Luigi's purchase of the condominium, the Rosabiancas each granted Luigi a durable general statutory short form power of attorney, appointing Luigi to act as their attorney-in-fact for all matters listed on the instruments, including "real estate transactions" and "banking transactions" with respect to their Brooklyn home. The Rosabiancas' signatures on both powers of attorney were duly acknowledged by a licensed notary public. Both powers of attorney have a handwritten notation at the bottom stating, "2342 Benson Ave., Brooklyn[,] NY Block 6874[,] Lot 50." At the May 14, 2008 closing on the condominium unit, Luigi acted as borrower, attorney-in-fact for the Rosabiancas, title closer, and title agent for Fidelity Title Insurance Company. Also at the closing that day, Luigi executed both the collateral mortgage and an adjustable rate note referring to a "Mortgage/Lien in the amount of $1,760,000" to be placed on two properties, setting forth the addresses of the Manhattan condominium unit and the Rosabiancas' Brooklyn home. Luigi signed the collateral mortgage on the Rosabiancas' behalf as their attorney-in-fact. [*2]Luigi also provided an affidavit of effectiveness, sworn and subscribed before a licensed notary public [FN2] with respect to each of the powers of attorney, in which he swore that each power of attorney was a "valid and subsisting [p]ower which has not been revoked" and that he had "full and unqualified authority to execute all documents." Luigi ...

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